Experts in Med Mal Cases: Must Prior Experience Have Been For Pay?

           A plaintiff filing a claim under the Tennessee Health Care Liability Act (HCLA) must prove certain elements, such as the recognized standard of practice, by expert testimony. Tenn. Code Ann. § 29-26-115(b) contains requirements for experts to qualify under the Act, including that the expert was licensed to practice in Tennessee or a contiguous state in a relevant profession or specialty and that the person practiced that profession or specialty in such a state during the year preceding the alleged injury. According to a recent Tennessee Court of Appeals case, however, the HCLA does not require a purported expert to have received monetary compensation for the practice in order to qualify under the Act.

               In Adkins v. Assoc. of the Memorial/Mission Outpatient Surgery Ctr., LLC, No. E2014-00790-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015), plaintiff had received a nerve block during a knee procedure, rendering her leg immobile. Her leg was still immobile upon discharge, so a nurse helped plaintiff to her vehicle in a wheelchair and proceeded to lift her into the car. While assisting plaintiff, the nurse dropped plaintiff between the front seat and dashboard of the vehicle, and plaintiff sustained injuries.

               Plaintiff gave proper pre-suit notice and filed her complaint, attaching a certificate of good faith as required by the HCLA. The only expert identified by plaintiff was Sandra Gupton, R.N. Defendant moved for summary judgment on the grounds that Gupton was not qualified as an expert because she was not a practicing nurse in the year preceding the incident. Defendant pointed to Gupton’s deposition testimony where “she stated she had not practiced in the nursing profession during the time period in question.” Plaintiff argued that Gupton had testified that she was busy with her mother-in-law, and that Gupton had in fact been her mother-in-law’s private nurse during this time. Defendant asserted that the alleged employment with her mother-in-law was not sufficient to qualify her as an expert because she was not compensated.

               The trial court found for defendant, relying on the fact that there was no evidence Gupton had been compensated for nursing services during the relevant year. The Court of Appeals, however, overturned this ruling.

               The Court first noted that while the requirements for an expert under the HCLA are that the expert be licensed to practice and have practiced within a relevant time frame, the HCLA does not define the term practice. Defendant pointed to Tenn. Code Ann. § 63-7-103(a)(1), a separate portion of the Tennessee Code related to professions of the healing arts, which defines the “practice of professional nursing” as the “performance for compensation of any act [falling within a certain definition]….” The Court of Appeals pointed out, however, that in 2005 the legislature amended the introductory section of this chapter to remove any reference to compensation. See Tenn. Code Ann. § 63-7-101. By taking out the compensation reference, the Court concluded that “the legislature recognized what this court also recognizes, namely that one may practice the nursing profession with our without receiving compensation.” The Court further found that the HCLA expert statute “does not contain a compensation requirement, and to read one into the statute would be contrary to the legislature’s intent.”

               The Court of Appeals thus held that “monetary compensation is not required to establish that an expert has practiced in his or her field,” overturned the summary judgment for defendant, and found that Gupton’s failure to receive compensation for the services she provided her mother-in-law did not bar her from being qualified as an expert under the HCLA.

               This was clearly the correct result in this case. Whether a person has practiced a health care profession (and thus is familiar with the standard of care)  is not necessarily contingent on whether he or she was paid for those services. One can think of a myriad of situations where a person might not receive traditional compensation, such as caring for a friend or family member or performing volunteer work. Deciding to practice in one of these scenarios should not operate as an automatic bar to expert qualification under the HCLA.  Rather, the jury should consider all prior experience, for pay and otherwise, in determining whether the expert is truly aware of the standard of care.